Lundeen v. Livingston Electric Light Co. , 17 Mont. 32 ( 1895 )

Pemberton, C. J.

The defendant contends that the evidence is insufficient to sustain the verdict, in that there is no evidence that the post and wire, or either of them, constitute an obstruction of the free use of the streets, in their ordinary and usual use.

We think the evidence is ample to support the finding in this particular. The evidence is that the post to which the wire was attached was five or six feet high; that the wire was fastened to it about four or five feet above the ground. The post was placed in the street some two feet, at least, from the edge of the sidewalk. We think that the wire was attached to the post so near to the ground that if a horse, being ridden or driven by the post, shied and ran under the wire, injury would be almost inevitable to the rider or driver. The wire was hung so low that a person stepping off the sidewalk, at or near the post, in the night time, and attempting to pass under the wire, would be liable to receive serious injury by contact with it. A man of ordinary height could not pass under the wire, at or near the post, without his head coming in contact therewith. We think the post and wire were ' not only obstructions, but dangerous ones. It seems that ordinary foresight and prudence would have enabled the defendant to have foreseen the probable consequence of placing the post and wire in the street in the manner is which they were placed.

Whether placing the post and guy wire in the street by the defendant constituted an obstruction to the free and ordinary use thereof was a question of fact, to be determined by the jury. (Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. 369; Railway Co. v. Prescott, 8 C. C. A. 109, 59 Fed. 237; Sweeney v. City of Butte, 15 Mont. 274, 39 Pac. 286.)

The real controversy involved in this case, we think, is found in the instructions given and refused by the court. Instruction 2, as given by the court, is as follows: The court instructs the jury that if they believe from the evidence that the plaintiff was injured and sustained damages as charged in the complaint, and that such injury was the combined result of an accident and of an obstruction in said Park street, and that the damage would not have been sustained but for such obstruction, although the primary cause was a pure accident, still if the jury further believe from the evidence that the plaintiff was guilty of no fault or negligence on her part, and the accident one which common prudence and ordinary sagacity on the part of the plaintiff could not have foreseen and provided against, then the defendant is liable, provided the jury believe from the evidence that the defendant was guilty of negligence, either in the placing of such obstruction in the street in such a manner as to prevent the free use thereof, or in not removing the same, if the same was an obstruction to the free use of said street. ’ ’

The court refused an instruction requested by the defendant, as follows: “You are further instructed that although you may believe from the evidence that the poles and wires thus placed in Park street by the defendant were dangerous to the traveling public, in their ordinary use of the street, yet if you believe that the injury to the plaintiff was approximately caused by the act of the witness Bender’s horse, while running away, in running against said pole or wire, and would not have happened but for the act of the said horse, you will find for the defendant. ’ ’

The defendant contends that the court erred in giving said instruction, and in refusing to give the one requested by it. The contention of the defendant is that plaintiff was injured as a result of Bender’s horse running against and breaking the guy wire, and that although the defendant was guilty of negligence in placing the wire in such a place and condition that the horse, under the attendant circumstances, would run against and break it, still it is not liable for damages for the injuries sustained by plaintiff. This contention proceeds upon the hypothesis that the placing of the wire in the street by the defendant must have been the sole cause of the injuries of the plaintiff; that the defendant is not liable for injuries resulting from an accidental intervening or other proximate cause, notwithstanding its negligence in placing the wire in the street. The defendant contends that the plaintiff would not have been injured if the horse had not run against and broken the wire, and therefore the defendant is not liable, however negligent it was in putting the wire in the street.

Brennan v. Cily of St. Louis, 92 Mo. 482, 2 S. W. 481, is very similar, in its facts and principles involved, to the case at bar. In that case the plaintiff, a child 3 years old, was with her sister, 13 years old, who was pushing a baby carriage with a baby in it, and were all on the sidewalk, close to a ditch which had existed for some months, when another little girl came up, stumbled against the plaintiff, and both fell into the ditch, and plaintiff’s leg was broken. In discussing that case the court said: “The first contention is that plaintiff should have been nonsuited because, from all the evidence, it appears the condition of the street was not the cause of the accident, but that it was caused by the stumbling of the other girl. It is true, no amount of care on the part of the city government can prevent children, or, for that matter, grown people, from stumbling. All this does not relieve the city from the necessity of keeping the streets in a reasonably safe condition, though the want of care on the part of the person injured may prevent a recovery. Cases are to be found where it seems to be held, under like circumstances, that, in order to recover, it must be proved that the injury was occasioned solely by the neglect of the defendant, and not the neglect of the defendant combined with some, accidental pause. But this court, in discussing a like question in Bassett v. City of St. Joseph, 53 Mo. 290, loc. cit. 300, said: ‘It is true that, if it had not been for the attempt of the mule to kick, the injury might not have occurred; and it is equally true that, if there had been no excavation at hand, the kicking of the mule would have been harmless. ’ And further on the conclusion is reached that, if the plaintiff was without fault, she would have a right to recover, notwithstanding the cause contributing to the injury was the attempt of the mule to kick plaintiff, and she, attempting to protect herself, fell or jumped into the excavation. The same principle, that the plaintiff may recover where he is in the exercise of ordinary care and prudence, and the injury is attributable to the defective street, with some accidental cause, was again asserted in Hull v. Kansas City, 54 Mo. 598, and must be taken as established law in this state. ’ ’

So while it may be true that plaintiff here would not have been injured if the horse had not run against and broken the guy wire, it is also true that the horse would not have run against and broken it if defendant had not negligently placed it in the street.

In Chicago & N. W. Ry. Co. v. Prescott, 8 C. C. A. 109, 59 Fed., at page 242, — a case quite similar to the one at bar,— the court say : •' ‘ With respect to the suggestion that the injuries complained of were immediately occasioned by the sudden shying of the horse which the plaintiff was driving, it is only necessary to say that the shying of the horse cannot be regarded as the sole proximate cause of the injury. The obstruction which had been placed in the highway directly contributed to the accident, and the jury was j ustified in so finding.” And see authorities cited.

This authority holds that there may be more than one cause contributing to the injury, and that if the obstruction placed in the street contributed to the injury, and the shying of the horse was not the sole cause, then the defendant was liable. The same doctrine is asserted in Ivory v. Town of Deer Park, 116 N. Y. 476, 22 N. E. 1080.

In Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. 369, a boy walked upon defendant’s track, and was injured. It was the duty of defendant to fence its track. In this case the road contended that the want of a fence was not the cause of the injury; that the cause of the injury was the boy’s negligently going upon the track. In other words, the defendant contended that the want of a fence was not the sole proximate cause of the injury. The court, in treating this contention, said : ‘ It is further argued that the direction of the court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, — causa causams, — this is, no doubt, strictly true; but that is not the sense in which the law uses the term in this connection. The question is, was it causa sine qua non; a cause which, if it had not existed, the injury would not have taken place; an occasional cause % And that is a question of fact, unless the causal connection is evidently not proximate. ’ ’

We think it was the duty of the defendant to have placed this guy wire so high above the ground that persons could pass under it, either on foot or horseback, in the day or night time, without danger of being injured. Placed as it was, it was not only an obstruction to the free and ordinary use of the street, but it was dangerous to the safety of persons who had the right to travel the streets. We think that a reasonably prudent person must have foreseen, when stringing this wire in the street as it was s'*rung, that just such accidents and calamities were liable to occur as happened to the plaintiff in this case. Persons and corporations acquiring franchises and privileges to use the streets of towns and cities in this state, for profit, should be held to a strict observance of legal obligations to guard and protect the persons, lives and property of the inhabitants thereof.

We have treated all the questions presented which we deem material to a determination of the case. We think the case-was properly and fairly tried, and the right result reached. The judgment and order appealed from are affirmed.

Affirmed.

De Witt and Hunt, JJ., concur.